Skip to content


Lalla Bhagun Pershad and ors. Vs. Holloway - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal393
AppellantLalla Bhagun Pershad and ors.
RespondentHolloway
Excerpt:
act xiv of 1882, sections 232, proviso (b), and 244 (clause c.) - civil procedure code--transferee of a money decree to one of several co-judgment-debtors--execution. - .....appellate court reversed the order of the first court, and against this order of reversal the present appeal is preferred.2. two points have been taken before us: first, that the lower appellate court's order was without jurisdiction, because no appeal lay to the district judge from the order of the first court; and, secondly, if an appeal did lie, the lower appellate court decided that appeal wrongly in point of law.3. we think that the lower appellate court had jurisdiction to try the appeal. it seems that the petitioner, the assignee of the decree, had been legally placed on the record as decree-holder; and we think that the district judge was right in the opinion he expressed that the matter in dispute between the petitioner and the other judgment-debtors was really one falling.....
Judgment:

Tottenham and Ghose, JJ.

1. This is an appeal from an appellate order in the matter of the execution of a decree. The applicant for execution had been made a defendant in the original suit by reason of his having purchased the property mortgaged under the bond on which the suit was brought, not because he was himself in any way personally liable for the debt. The petitioner, after the decree had been passed, purchased it and applied to the Court under Section 232 for execution against the principal defendant. The Subordinate Judge refused the application with reference to proviso (b) to Section 232, which is to this effect: 'Where a decree' for money against several persons has been transferred to one of them, it 'shall not be executed against the others.' The first Court was of opinion that this was a decree for money passed against the petitioner in common with other persons, and having been transferred by sale to the petitioner it could no longer be executed against the others. The lower Appellate Court reversed the order of the first Court, and against this order of reversal the present appeal is preferred.

2. Two points have been taken before us: first, that the lower Appellate Court's order was without jurisdiction, because no appeal lay to the District Judge from the order of the first Court; and, secondly, if an appeal did lie, the lower Appellate Court decided that appeal wrongly in point of law.

3. We think that the lower Appellate Court had jurisdiction to try the appeal. It seems that the petitioner, the assignee of the decree, had been legally placed on the record as decree-holder; and we think that the District Judge was right in the opinion he expressed that the matter in dispute between the petitioner and the other judgment-debtors was really one falling within the meaning of Clause (c), Section 244, and that the proviso (b) to Section 232 was simply the ratio decidendi of the matter in dispute between the parties. We hold, therefore, that an appeal did lie to the District Judge; and on that ground the present appeal cannot be maintained.

4. Then as regards the construction of the law contained in proviso (b) to Section 232, we are of opinion that the lower Appellate Court was right. As we read that proviso, we think that it refers to a decree for money personally due by two or more persons. It does not apply to such a case as the present, in which nothing was due from the assignee of the decree personally, he having been made a defendant only by reason that he had become the owner of the property mortgaged under the bond and subject to the mortgage. This view is in accordance with the decision of a Division Bench of this Court (not reported, but which has been laid before us) in miscellaneous appeal No. 266 of 1881, dated the 9th March 1883. Independently of that judgment, however, we feel no doubt as to the proper construction to be put upon this section.

5. We accordingly affirm the order of the lower Appellate Court and dismiss the appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //